Opinion
06 Civ. 2873 (PAC) (KNF).
August 24, 2007
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff Russell D. Palmer ("Palmer"), a New York State inmate, proceeding pro se and in forma pauperis ("IFP"), brings this action, pursuant to 42 U.S.C. § 1983 ("Section 1983"), against the New York State Department of Corrections and various corrections officials alleging deprivation of his civil rights. Before the Court is the defendants' motion to dismiss, pursuant to: (1) 28 U.S.C. § 1915(g), for Palmer's failure to pay the applicable filing fee, as required by a court order dated March 25, 2005; and (2) Fed.R.Civ.P. 12(b)(6), for Palmer's failure to state a claim upon which relief may be granted. The plaintiff opposes dismissal of his complaint contending, inter alia, the filing fee will be deducted from his inmate account. The motion is addressed below.
II. BACKGROUND
Palmer filed the instant complaint on April 12, 2006, and his request to proceed IFP was granted. He submitted a signed Prisoner Authorization form permitting automatic deductions of the filing fee from his prison trust fund account.Palmer alleged that, while he was confined at Green Haven Correctional Facility, the defendants violated his civil rights by: (a) preventing him from attending his son's funeral; (b) subjecting him to contaminated drinking water; (c) charging and convicting him, wrongfully, for possessing unauthorized material; (d) confining him to his cell without authorization to do so; and (e) depriving him of lights and electrical power in his cell for two weeks. In the complaint the plaintiff filed to initiate this action, Palmer indicated he had filed the following lawsuits previously, which involved either the same facts as are pertinent to this action, or were otherwise related to his confinement: (1)Palmer v. Stewart, No. 02 Civ. 4076, filed on or about September 11, 2001, in the United States District Court for the Southern District of New York ("SDNY"), and no disposition issued; and (2)Palmer v. Neldon, No. 05 Civ. 1546, filed on or about November 30, 2004, in the SDNY, and no disposition issued. On August 29, 2006, Palmer filed an amended complaint, in connection with the instant action. In that amended pleading, Palmer made additional allegations of civil rights violations by the defendants that occurred during his confinement at Otisville Correctional Facility, between October 2005 and August 2006. In the amended complaint, the plaintiff did not disclose any additional actions that he had filed prior to commencing the instant action.
III. DISCUSSION
Congress enacted the Prison Litigation Reform Act (" PLRA") "with the principal purpose of deterring frivolous prisoner lawsuits and appeals."Tafari v. Hues, 473 F.3d 440, 443 (2d Cir. 2007) (quotingNicholas v. Tucker, 114 F.3d 17, 19 [2d Cir. 1997]). To that end, PLRA contains a "three-strikes" provision. "The 'three-strikes' provision in the PLRA was designed to accomplish [the] goal [of deterring frivolous prisoner litigation] by 'forc[ing prisoners] to go through the same thought process non-inmates go through before filing a suit, i.e. is filing this suit worth the costs?'"Id. (Citation omitted). PLRA's "three-strikes" provision states:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g).
The "'imminent danger' exception only applies to danger existing at the time the complaint is filed." Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002). "By using the term 'imminent,' Congress indicated that it wanted to include a safety valve for the 'three strikes' rule to prevent impending harms, not those harms that had already occurred." Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 (3rd Cir. 2001).
An action is frivolous when "it lacks an arguable basis either in law or in fact." See Tafari, 473 F.3d at 442. "A case is malicious if it was filed with the intention or desire to harm another." Id. (quotation omitted). In determining whether a prior dismissal of an action qualifies as a strike, for the purpose of Section 1915(g), a district court needs to be mindful that the phrase "'fails to state a claim upon which relief may be granted' is an explicit reference to Fed.R.Civ.P. 12(b)(6)." See Tafari, 473 F.3d at 442. "A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. If the allegations, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim." Jones v. Bock, ___ U.S. ___, 127 S. Ct. 910, 920-21 (2007). Moreover, failing to state a claim upon which relief may be granted and seeking monetary damages from a defendant who is immune from such relief are both grounds for the sua sponte dismissal of a complaint by a court that is performing the judicial screening function assigned to it by PLRA. See id. at 920; see also 28 U.S.C. § 1915(e)(2)(B). A determination on whether a particular ground is a basis for dismissing a complaint, for failing to state a claim upon which relief may be granted, "depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract." Bock, 127 S. Ct. at 921.
In his complaint, the plaintiff identified only two actions he had filed prior to commencing the instant action. However, public records reveal that, while confined as an inmate, Palmer had filed the following civil actions, in the SDNY, prior to commencing the instant action:
1) Palmer v. New York City Police Department, et al., No. 98 Civ. 6591 (Section 1983 filed on September 18, 1998);
2) Palmer, et al. v. Siegel, No. 98 Civ. 6592 (Section 1983 filed on September 18, 1998);
3) Palmer, et al. v. Bronx Supreme Court, No. 01 Civ. 6694 (Section 1983 filed on July 23, 2001);
4) Palmer v. Caldron, et al., No. 01 Civ. 6695 (Section 1983 filed on July 24, 2001);
5) Palmer v. J.S.C. Fisher, et al., No. 01 Civ. 6696 (Section 1983 filed on July 24, 2001);
6) Palmer v. Stewart, No. 02 Civ. 4076 (Section 1983 filed in on May 30, 2002);
7) Palmer v. Phillips, No. 04 Civ. 1414 (Habeas Corpus proceeding);
8) Palmer v. Police Officer Neldon, et al., No. 05 Civ. 1546 (Section 1983 filed on February 4, 2005); and
9) Palmer v. Alvarez, No. 05 Civ. 3258 (Section 1983 filed on March 25, 2005).Palmer v. Alvarez , No. 05 Civ. 3258
The defendants contend the instant action is barred because the dismissal order in Palmer v. Alvarez, dated March 25, 2005, invoked 28 U.S.C. § 1915(g) specifically: "Plaintiff is also barred from filing any civil action in this court under the in forma pauperis statute while he is a prisoner, unless his allegations bring his complaint within the terms of the statute's 'imminent danger' exception." The plaintiff asserts the defendants' contention "concerning [his failure to pay the] filing fee is irrelevant" because the filing fee will be deducted from the plaintiff's inmate trust account.
The plaintiff's complaint in Palmer v. Alvarez was dismissed, pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii), 1915(e)(2)(b)(iii), "for failure to state a claim upon which relief may be granted and for asserting claims against defendants immune from suit." The district judge certified, pursuant to 28 U.S.C. § 1915(a)(3), "that any appeal from this order would not be taken in good faith." The dismissal judgment in Palmer v. Alvarez qualifies as a strike, for the purpose of Section 1915(g), because it was based on a failure to state a claim on which relief may be granted and immunity from suit grounds, as specified in Section 1915(g).
Palmer v. Police Officer Neldon, et al. , No. 05 Civ. 01546
Although the defendants do not allege any other action that may qualify for the purpose of PLRA's three-strikes provision, public records demonstrate that, on May 3, 2006, in Palmer v. Police Officer Neldon, et al., a magistrate judge, after converting the defendants' motion to dismiss, made pursuant to Fed.R.Civ.P. 12(b)(6), to a Fed.R.Civ.P. 56, motion for summary judgment, recommended dismissal of the complaint, with prejudice, because the plaintiff's claims were barred by the applicable statute of limitations. On September 29, 2006, the assigned district judge adopted the magistrate judge's report and recommendation. The docket sheet maintained by the SDNY Clerk of Court for that action indicates that, thereafter, the plaintiff filed a notice of appeal with the Second Circuit Court of Appeals. Although the defendant's motion to dismiss was converted to a motion for summary judgment, the district court's dismissal in Palmer v. Police Officer Neldon, et al. qualifies as a strike, for the purpose of Section 1915(g), because the action was dismissed because it was barred by the applicable statute of limitations, which is a failure to state a claim on which relief may be granted.
Palmer v. Phillips , No. 04 Civ. 1414
On February 19, 2004, acting pro se, Palmer filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. As of the time of this writing, the petition has not been resolved and cannot count as a strike, for the purpose of Section 1915(g).
Palmer v. Stewart , No. 02 Civ. 4076
On July 15, 2002, Palmer filed a pro se civil rights action against a police officer named "Stewart." After it was determined that the officer had passed away, Palmer was directed, by a magistrate judge, on March 9, 2004, to file a motion pursuant to Fed.R.Civ.P. 25(a)(1), to substitute the named defendant with a representative of the defendant's Estate. Palmer substituted the representative. However, in a memorandum of law, dated April 17, 2004, Palmer explained to the court that bringing an action against the defendant's Estate was a mistake because the defendant was not involved in the events underlying his action. Palmer's application to substitute Detective Stephen Harding as a defendant was denied by a district judge's order of November 15, 2005, for reasons stated in the magistrate judge's March 5, 2004 order, and the action was dismissed in its entirety, with prejudice. The magistrate judge's March 5, 2004 order denied Palmer's application to amend his complaint to add three defendants, including Detective Stephen Harding, because the amendment was untimely, as the statute of limitations expired on the underlying claim against the proposed new defendants. The magistrate judge explained that Palmer's lack of knowledge of the defendant's identity did not qualify as "a mistake concerning the identity of a proper party," as contemplated by Fed.R.Civ.P. 15(c)(3). Therefore, inasmuch as Palmer v. Stewart was dismissed based on the expiration of the applicable statute of limitations, that dismissal counts as a strike, for the purpose of Section 1915(g).
Palmer v. J.S.C. Fisher, et al. , No. 01 Civ. 6696, Palmer v. Caldron, et al. , No. 01 Civ. 6695, Palmer, et al. v. Bronx Supreme Court , No. 01 Civ. 6694
In July 2001, Palmer brought three pro se civil rights actions against J.S.C. Fisher, et al., Caldron, et al., and the Bronx Supreme Court, respectively. On July 24, 2001, a district judge consolidated the three actions, and, pursuant to 28 U.S.C. 1915(e)(2)(B)(ii), 1915(e)(2)(B)(iii), dismissed them for Palmer's failure to state a claim(s) on which relief could be granted, and because Palmer sought relief against defendants who were immune from such relief. All three judgments of dismissal certified, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from the order of dismissal would not be taken in good faith. The Court finds that these three dismissals count as strikes, for the purpose of Section 1915(g), because the actions were dismissed due to Palmer's failure to state a claim upon which relief could be granted and because he attempted to obtain relief against defendants who were immune from the relief sought.
Palmer, et al. v. Siegel , No. 98 Civ. 6592
On September 18, 1998, Palmer filed a pro se Section 1983 action against his court-appointed counsel alleging that counsel's legal malpractice and negligence violated his constitutional rights. Dismissing the action the same day, a district judge concluded that, because court-appointed attorneys and public defenders do not act under color of state law, "[p]laintiff's allegations against this defendant fail to state a cognizable claim in federal court. Accordingly, the complaint, filed in forma pauperis under 28 U.S.C. 1915(a)(1), is dismissed because it 'lacks an arguable basis either in law or in fact.'Neitzke v. Williams, 490 U.S. 319, 325[, 109 S. Ct. 1827, 1831] (1989)." The judgment of dismissal certified that, pursuant to 28 U.S.C. § 1915(a)(3), any appeal from the order would not be taken in good faith. This action was dismissed for both failure to state a claim upon which relief may be granted and because it was frivolous. Consequently, the dismissal counts as a strike, for the purpose of Section 1915(g).
Palmer v. New York City Police Department, et al. , No. 98 Civ. 6591
On September 18, 1998, the plaintiff filed a pro se civil rights action alleging he was falsely arrested for a crime he did not commit. The complaint was dismissed on the same day, pursuant to 28 U.S.C. § 1915(e)(2), because it lacked an adequate basis in either law or in fact. The judgment of dismissal certified that, pursuant to 28 U.S.C. § 1915(a)(3), any appeal from the order would not be taken in good faith. This dismissal counts as a strike, for the purpose of Section 1915(g).
As the above analysis demonstrates, the plaintiff filed more than three meritless civil rights actions, while confined as an inmate, prior to filing the instant action. To avoid dismissal of the instant action, pursuant to Section 1915(g), the plaintiff must demonstrate that he was under imminent danger of serious physical injury at the time he filed the complaint, on April 12, 2006. Imminent Danger
The defendants contend, none of Palmer's claims demonstrate that he was under imminent danger of serious physical injury at the time he filed the complaint. The Court agrees with the defendants. Even when interpreting the complaint liberally and construing the pleadings in the light most favorable to Palmer, any harm that he may have suffered because he: (a) was unable to attend his son's funeral in 2003; (b) contracted hepatitis in 2001 by drinking contaminated water at Green Haven Correctional Facility and developed an eye infection in 2004; (c) was wrongfully charged with possession of unauthorized material in 2004; or (d) was deprived of light and electrical power in his cell in 2004, was not an impending harm on April 12, 2006, when Palmer filed his complaint. Therefore, no harm alleged by Palmer in his complaint or any other allegation contained therein satisfies the "imminent danger of serious physical injury" exception found in Section 1915(g) that would permit Palmer to maintain this action.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the defendants' motion to dismiss the plaintiff's complaint, pursuant to 28 U.S.C. § 1915(g), be granted.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Crotty, 500 Pearl Street, Room 735, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Crotty. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 470 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F. 3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).